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Who legally owns RFS vehicles?

… a question regarding who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations?

I’ve asked senior staff of the NSW RFS this very question and have received conflicting answers.

A legal person can sue and be sued and can enter a contract. Only a legal person can ‘own’ something. A legal person is a natural person (you and I) or a corporate entity. A corporation may be a company or it may be a government or an organization created by an Act of Parliament.

Compare the RFS position to, for example, the ‘Health Administration Corporation’. That corporation is established by the Health Administration Act 1982 (NSW) to provide a legal entity for the delivery of health services. The Act provides that the Corporation ‘may take proceedings, and be proceeded against in its corporate name’ (s 9).

So if a brigade is not a legal entity, and the RFS is not a legal entity, who does own the RFS assets? The Government Sector Employment Act 2013 (NSW) defines the public service, departments, public service executive agencies and separate public service agencies. The Office of the NSW Rural Fire Service is an executive agency related to, or part of, the Department of Justice (Government Sector Employment Act 2013 (NSW) s 22 and Part 2 of Schedule 1). The Crown Proceedings Act 1988 (NSW) says that the ‘Crown’ can sue (s 4) and be sued (s 5). The Crown includes ‘the Government of NSW’ as well as ‘a statutory corporation, or other body, representing the Crown in right of New South Wales’ (s 3). (See also the Rural Fires Act 1997 (NSW) s 12(5) which says (emphasis added) that:

The Commissioner (on behalf of the Crown) may make or enter into contracts or arrangements with any person for the carrying out of works or the performance of services or the supply of goods or materials in connection with the exercise of the functions of the Service’.)

The relevant legal entity is, therefore, not the Rural Fire Service, it is the Crown in Right of NSW. That the relevant legal entity is ‘NSW’ is why legal actions against the RFS are described as being a case against ‘NSW’ – see for example the legal action arising out of the 2003 Canberra fires: Electro Optic Systems Pty Ltd v State of New South Wales; West and Anor v State of New South Wales [2014] ACTCA 45.

Conclusion

So ‘who legally owns vehicles that are purchased by NSW RFS Volunteer Brigades’, with funds raised from public donations?’

It can’t be the brigade as the brigade does not have a separate legal existence, a brigade is a part of the RFS. It can’t be the RFS as the RFS does not have a separate legal existence, it is an executive agency and part of the Crown in Right of New South Wales. The answer, therefore, is that the assets of a brigade, including ‘vehicles that are purchased by NSW RFS Volunteer Brigades, with funds raised from public donations’ are owned by the State of New South Wales.

Addendum (1 September)

In my attempt to keep this answer simple, I may have over-simplified it. My key point is that the legal entity that is the RFS is the ‘Crown in Right of NSW’ or simply, the State of New South Wales. It means an individual brigade can’t own a vehicle as an individual brigade does not have a separate legal existence. As Tim Williams said, in a comment below, my “underlying point is that the RFS is not a federation” (and thanks Tim for your helpful comments). Tim has also pointed out that s 119(2) of the Rural Fires Act provides that if any part of the purchase was funded from the Rural Fire Fighting Fund then the owner is the local council.

The owner can also depend on specific arrangements and how the purchase was made. If the donated money was given to council and they bought the appliance it may again belong to council. If there was a social club or fundraising committee, the appliance may belong to them depending on their legal structures.

It means that my answer should have read, with respect to any particular appliance bought for any particular brigade, who owns it will depend on who actually bought it, by whom were the funds collected, how were they spent etc. My answer did assume volunteers out with buckets, or cooking sausages, collecting the money, putting it in the bank probably into an RFS account (not a personal account) and then using those funds to fund 100% of the purchase. That may be too simplistic a picture given the cost of an appliance (hence my concern of oversimplification) but for that scenario (and no doubt others) the owner has to be the State.

On a final point one can’t check who is the ‘registered owner’ because

Proof of registration is not proof of ownership – the registered owner is responsible for the traffic tickets and is the contact person for the car, but being the registered owner does not prove you own the vehicle. This is unlike real property (ie land) where being the registered owner of a block of land is conclusive proof that you are also the legal owner; and

The registration provisions do not apply to any registrable vehicle that is used on a road or road related area if the vehicle:

(a) is attached to a rural fire brigade formed under the Rural Fires Act 1997 and has painted on it, or securely affixed to it, a sign clearly identifying the rural fire brigade to which it is attached …

and provided it is being used for one of the various purposes listed such as firefighting (cl 12(b)), training (cl 12(c)(iii)) or ‘to perform such other functions of the NSW Rural Fire Service as the Commissioner … or a fire control officer … may approve …’ (cl 12(c)(v)).

Note that this exemption says that the appliance has be ‘attached to’ not ‘owned by’ a rural fire brigade.

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9 thoughts on “Who legally owns RFS vehicles?”

Rather than think about the HAC, it might make more sense if readers think of the RFS and individual brigades as being more like the Department of Education and individual schools.

I suggest that brigades can have legal personality for some purposes but not others.
For example, individual brigades can have legal personality for tax purposes (DGR etc),
but are not, individually, PCBUs for WHS purposes.

Nor do they have a financial delegation, and it’s not clear to what (if any) extent a brigade is an entity capable of pledging credit.

I respectfully assume that your underlying point is that the RFS is not a federation.
I agree. However, given the above examples, I find it hard to agree with the general proposition that brigades are wholly without separate legal personality.

A further layer of complexity can arise when Rural Fire Fighting Fund money is also involved in the purchase. At such times, section 119(2) of the act can be in play.
For the benefit of later readers – that section provides for funded assets to vest in local authorities (ie Councils).
Given the wording of that section, we must assume that one dollar of fund money in any asset will see it so vested, notwithstanding the web of administrative delegations and service agreements between the RFS and those bodies in regard to the management of such assets.

According to the Australian Charities and Not for Profits Commission, some entities cannot be registered as charities. These include ‘a ‘government entity’ — this is part of an Australian or foreign government or one of its agencies, and some organisations established by a state or territory under a law’ (http://www.acnc.gov.au/ACNC/Register_my_charity/Who_can_register/Step4/ACNC/Reg/Step4.aspx?hkey=e61b0fe5-1507-4c50-9b1e-9a74e03e8295). On my view that would mean a brigade could not be registered as a charity and I note that a search of the register reveals no record for the Bilpin Rural Fire Brigade using either the name or ABN so I infer it is no longer registered.
A further search of the charities register reveals the following NSW charities that use the name ‘Rural Fire Service’:
• Gosford City Rural Fire Service Canteen;
• Great Lakes Headquaters Rural Fire Service Catering;
• NSW Rural Fire Service Association Incorporated;
• NSW Rural Fire Service Catering Officers Region East;
• NSW Rural Fire Service Welfare/Support Brigade; and
• The Trustee for NSW Rural Fire Service & Brigades Donations Fund.
None of them are the brigades themselves and therein lies a solution. The members of a brigade could well form a corporate entity such as the Kickatinalong Rural Fire Service Support Association. That association could raise funds and buy equipment and either donate or lend that equipment to the relevant RFS brigade. Whether that would be considered appropriate by the RFS or the Commissioner is another matter.
So I don’t think a brigade ‘can have legal personality for tax purposes’ or for other purposes.

A ‘deductible gift recipient (DGR) is an entity or fund that can receive tax deductible gifts’ (http://abr.business.gov.au/DgrListing.aspx) so a brigade might set up a ‘fund’ but that does not change the status of the brigade.

As for the Rural Fires Act 1997 (NSW) s 119(2) it forms part of ‘Part 5 – New South Wales Rural Fire Fighting Fund’. The Fund is used to maintain the RFS and it is made up of contributions from the insurance industry, local government and state government (s 107). Section 119(2) says ‘All fire fighting equipment purchased or constructed wholly or partly from money to the credit of the Fund is to be vested in the council of the area for or on behalf of which the fire fighting equipment has been purchased or constructed.” So equipment purchased from that fund belongs to the relevant local council’. But as noted the question I was asked related to ‘funds raised from public donations’ so I inferred that this did not involve money from the Rural Fire Fighting Fund.

David, a complete answer is far too complex to do here. In simple terms land that is ‘owned’ by the RFS is owned by the Crown, but that doesn’t mean every station is owned by the RFS. They may be owned by the local council, they may be leased from a private owner, another government department or any other ‘owner’. I’m not sure how the state government manages all its land assets so I can’t answer other than the general, if the RFS owns it, then the Crown is actually the owner.

As part of your response to this question, did you consider Section 119 of the Rural Fires Act 1997, particularly subsection (2)?

“(2) All fire fighting equipment purchased or constructed wholly or partly from money to the credit of the Fund is to be vested in the council of the area for or on behalf of which the fire fighting equipment has been purchased or constructed.”